Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Mixed Outcome
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In this case a journalist, Mr. Morar, wrote articles in the context of upcoming Romanian Presidential election in which he speculated that a political advisor was a spy, money launderer and connected to Securitate – the secret police agency of communist Romania. The political advisor, VG, brought charges of criminal defamation for which Mr. Morar was found guilty. Mr. Morar appealed his conviction as an Article 10 violation of his journalistic freedom of expression. The law in Romania criminalizing defamation was abolished soon after his conviction, nonetheless, the ECtHR held that his conviction, since at the time it was a crime, was an Article 10 violation.
The applicant, Mr. Morar, was a journalist in Romania who wrote for a satirical weekly named Academia Caţavencu. In 2004, in the context of presidential elections, he wrote four articles that insinuated that one of the political advisers, identified as VG, was a spy and money launderer who was connected to the former Romanian totalitarian regime Securitate. VG brought charges of criminal defamation against the applicant.
In 2005, the trial court acquitted the applicant of defamation finding that the articles were not defamatory and that the plaintiff had engaged in public political discourse subjecting him to journalistic criticism. The plaintiff appealed on the grounds that the article contained defamatory imputations of fact, and that the applicant, Mr. Morar had acted in bad faith. On appeal, the District Court held that the articles had damaged VG’s reputation because they imputed facts and by nature those facts centered on areas of secrecy the truth of which could not be proved by Mr. Morar. Therefore Mr. Morar was given the suspended sentence of paying a nominal criminal fine of 1000 Romanian Leu.
Mr. Morar then appealed this judgment to the European Court of Human Rights under Articles 10, 6 and 41 of the European Convention on Human Rights (ECHR). He argued that his conviction was made in the absence of evidence and violated his journalistic freedom of expression. The government argued that the article contained contained factual imputations and value judgments which did not have even a minimum factual basis. The Government felt that a legitimate aim of protecting VG’s reputation was pursued by the conviction. Further, the Court considered that the applicant’s assertions regarding VG were extremely serious and that the criminal conviction imposed on the applicant was proportionate to the legitimate aim pursued, since the criminal fine, fixed at a minimum, did not discourage persons from exercising his or her journalistic activity.
Judges Josep Casadevall, Luis López Guerra, Ján Šikuta, Kristina Pardalos, Johannes Silvis, Valeriu Griţco, Branko Lubarda, delivered the judgment for the ECtHR.
The Court began by stating that it was not in dispute that the conviction was an “interference by a public authority” with the applicant’s freedom of expression prescribed by law and in pursuit of a legitimate aim – “the protection of the reputation of others”. At issue therefore, was whether the conviction was “necessary in a democratic society”. To decide this the Court had to determine whether the reasons given by national authorities to justify their interference were “relevant and sufficient” and “proportionate to the legitimate aims pursued”.
It was held that the press plays a prominent role in a democratic society and must communicate to the public information and ideas on matters of general interest. However, this must be done in accordance with journalistic duties and responsibilities and care taken not to overstep certain limits relating in particular to the protection of the reputation and rights of others. The Court held that in this case,the impugned articles were subjects of general interest and that electoral strategies and profiles of potential candidates in the elections and political environment, in particular concerning the issue of collaboration of these individuals with the former Securitate were especially relevant for the Romanian society a few months before the presidential elections of 2004.The Court held that it is necessary to distinguish between private persons and persons acting in a public context. Politicians or public figures are subject to wider limits of acceptable criticism than private individuals. This is because they knowingly open themselves to close scrutiny by both journalists and the public at large. Therefore, unlike the judiciary, politicians and public officials must show greater tolerance.
The Court compared the different approaches of the trial court and the appellate District Court with regard to whether the statements constituted facts or value-judgments, noting the difficulty that can arise in distinguishing between the two. It determined the case independently of this question on the grounds that even value-judgments can be excessive where devoid of fact. (para. 59)
The Court held that, even though the articles used “unsuitable” language, the content remained within the limits of permissible exaggeration or provocation based on the fact that the defamed person was a public figure and also on the fact that it was characteristic of a satirical publication.
Further, the Court reiterated that the nature and severity of the penalties imposed are factors to be taken into consideration and held that even though in this case the applicant did not have to fulfill the criminal fine because he was given a suspended sentence and defamation was decriminalized in Romania July 2006, a few months after the criminal conviction of the applicant, the fact still remained that, at the time, the applicant was the subject of a criminal penalty on the basis of national law. It was held that whilst States may regulate the exercise of freedom of expression to ensure adequate protection by law of the reputation of individuals, they should avoid doing so in a manner that discourages the media from fulfilling their role of informing the public on matters of general interest, such as ties to former public figures of the former repressive Romanian regime in this case.
It was held that the amount of damages awarded to plaintiffs was particularly high, representing more than fifty times the amount of the average wage at the time. Therefore, given the importance of the matter of general interest that the impugned remarks were about and the amount of damages applied by the applicant’s conviction, the interference with the applicant’s freedom of expression was considered unjustified by relevant and sufficient reasons and therefore not “necessary in a democratic society” within the meaning of Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands freedom of expression as it upholds the right of journalists to political expression and scrutiny of public officials without being subject to criminal sanction. However, while it is good that journalistic expression is interpreted expansively, the Court also fails to prescribe what the limits of that journalistic expression should be. This may leave too much leeway for journalists to make defamatory statements. The Court focuses on the status of the speaker/author of the defamatory statement (e.g. journalist), as opposed to the content of the defamatory statements. It is problematic to treat the status of the speaker as determinative, instead of as a factor, to be looked at in determining the permissibility of the defamation, since the protection of the reputation of other is a justifiable limitation to expression and the court should be striving to strike an appropriate balance between these competing interests.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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